Policing

Federal look into Breonna Taylor's death casts a wider net
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One of the more popular aspects of the George Floyd Justice in Policing Act is the provision that bans so-called “no-knock” warrants for all federal law enforcement and revokes all aid to state and local police forces unless they follow suit. Given the vast amount of money that the federal government makes available for law enforcement, this is likely to be an effective way to change protocols across the country: by some accounts, various federal agencies pay over a billion dollars a year to state and local police forces.

No-knock search warrants became particularly infamous in 2020 because of the death of Breonna Taylor in Louisville during the execution of a no-knock warrant. These warrants are relatively common: one estimate is that over 20,000 no-knock search warrants are executed each year. They are used most often in drug cases–by some estimates, over 80% of these warrants are for suspected drug locations. Police need only demonstrate a reasonable belief that the usual practice of “knock and announce” (followed by an appropriate waiting period of 15-20 seconds) would lead to the destruction of evidence or would endanger officers. But by now we have enough evidence that the potential risks of these warrants far outweigh the potential gains.

The justification for these warrants is that they prevent the suspects from destroying evidence, and that they may be safer for officers because the suspects do not have time to prepare a violent response. Given the fact that a traditional warrant execution only gives the residents of the building fifteen to twenty seconds of warning before police force entry, there is little chance that criminals could effectively destroy of all of the evidence of their crime, even if it something as disposable as drugs, in such a short period of time. And an empirical study in Kansas City found no evidence that no-knock search warrants are safer than traditional warrants. Instead, it appears that these warrants endanger the lives of the police who execute them and the lives of those in the home being searched. Although there is plenty of anecdotal evidence of innocent individuals like Taylor being killed in no-knock raids, there is not very much in the way of hard statistics about how many deaths each year occur as a result of this practice. A New York Times investigation found “only” 81 civilian deaths and 13 police deaths over the six year period between 2010 and 2016, but that investigation only looked into raids conducted by SWAT teams, and so did not cover all of the no-knock warrants during that time period. Although this is a small percentage of the total number of deaths caused by police officers, abolishing no-knock warrants is almost certainly the lowest-hanging fruit as far as reforms go–the move will increase the safety of civilians (and officers) without costing much in the way of crime control.

One of the more popular aspects of the George Floyd Justice in Policing Act is the provision that will mandate body cameras for all federal police officers and provide federal funding for state and local police forces who purchase them. We have seen so much body camera footage over the past few years that it is easy to assume that they are already ubiquitous, but as of 2020, only 45% of police departments used them. The George Floyd legislation could help with this; although the federal police officers that it directly affects only make up 20% of the 700,000 police officers nationwide, the funding the legislation provides should spur widespread adoption of these devices throughout the country. Still, it would be better if the legislation went further: Congress could, for example, withhold all federal funding from local police agencies that do not mandate body cameras within a specific time period; the George Floyd Act uses this tactic to force local police to ban chokeholds and forgo no-knock search warrants.

Although body camera footage has been integral to exposing some of the worst instances of police misconduct, and has helped to exonerate other police officers when their use of force is justified, its use is still controversial. A recent Washington Post article argues that without proper disclosure rules, body cameras could be ineffective in deterring police conduct. The Economist came to a similar conclusion after reviewing the varied disclosure rules of different states, from North Carolina and Louisiana, which (along with nine other states) require a court order to disclose body camera footage to Ohio, which makes the footage part of the pubic record. Swift and relatively easy disclosure policies are critical to enhance the effectiveness of body camera footage.

The Post article cites a meta-study which found that there was not yet conclusive evidence that wearing body cameras reduced the instances of police inappropriate use of force. However, the lack of conclusive evidence is likely because body cameras are still relatively new devices, and thus their effect on police conduct (and their use in trials and disciplinary proceedings) has not yet registered. And although we have become sadly accustomed to seeing video footage of police shootings, the vast majority of police lethal use of force cases did not have video footage–of the the 6,329 lethal police shootings since 2015 that are tracked in the Washington Post database, only 842 (13%) could be confirmed to have body cameras.

The meta-study did find a number of beneficial effects of body cameras, such as a lower rate of use-of-force complaints against police officers–this could mean that officers with body cameras actually use less force, or that those who interact with police are less likely to file baseless complaints against officers when the interaction is caught on video. Either effect would be an improvement. And body camera footage can be valuable for prosecutors in courtroom as well, especially in drunk-driving cases to prove the defendant’s inebriated state.

But perhaps the best argument in favor of universal use of body cameras is the increased transparency they provide. Without the existence of body cameras–and the swift disclosure of their footage–community members and the public at large will remain uncertain about whether the killing was justified, especially in today’s political climate in which many communities strongly distrust the police. This point is highlighted by a recent shooting in Minneapolis by federal agents in which there was no video evidence of the event. The police officers reported that the victim refused to comply with police orders and then pulled a handgun. Toshira Garraway, the founder of Families Supporting Families Against Police Violence, responded: “We no longer have faith in just believing the narratives that the police give us. They have forfeited their right to just tell us a story. We need facts, and the fact is any video footage.” The transparency that police body cameras create can not only provide evidence of police misconduct when it does occur, but also help to re-build legitimacy to police actions when they are justified.

We are have reached the one year anniversary of the murder of George Floyd, and the past year has seen an unprecedented amount of activism surrounding the nature of policing in general and race relations more broadly. Sadly, the issue of lethal police use of force is hardly a new issue; six years ago I wrote about the Washington Post’s then-new database on police shootings, and I noted that “[o]ver the past three years as we have tried to come to terms with the many high-profile police killings across the country.” And the issue of police use of force obviously stretches back far before that–it has been a problem for decades, if not centuries. If there is a silver lining regarding the social and political upheaval that we are now undergoing on this issue, it is that we are finally dealing with this issue head on, and therefore we may have a chance to make progress.

Unfortunately, a lot of the past year has seen more heat than light brought to bear on the question of police use of lethal force, on both sides. Given the nature of the problem, this level of passion and raw emotion is understandable. And any serious effort to change status quo needs to generate political energy and grass-roots support to be successful. But the ultimate goal has to be real, meaningful, achievable reform, which means diagnosing the problem accurately and then building coalitions to generate majority support for a sustained solution.

Most of the protests–and most of the media coverage of the issue–has focused on the fact that police use lethal force against Black Americans at a higher rate than against other groups. This disparity has led to calls for greater diversity and implicit bias training for police officers, as well as a broader political movement to address systemic racism that exists throughout society. These are all urgently important issues, and our country will be a better one because of the challenging discussions we are now having and the reforms that they will bring about, inside and outside of the criminal justice system. But as many reformers are pointing out, the issue of police lethal use of force does not only affect Black Americans; the Washington Post database notes that victims of police killing come from across the racial spectrum; given the higher numbers of whites than Blacks in the American population, police kill twice as many white people as Black people.

Thus, even if all of the factors that lead to a disproportionate number of Black victims were eliminated, and Black citizens were victims of police shootings to the same degree as white citizens, we would still see over 700 police killings per year, including roughly a hundred Black victims.  Some percentage of these killings are unjustified, and certain reforms (such as increased use of body cameras and the elimination of qualified immunity for police officers) will help to deter such actions. But most of these police killings are justifiable under the law. Thus, we need to think not just in terms of eliminating unjustified killings, but also work on reducing the much larger number of justified killings–that is, we need to work towards a world in which police are almost never put into a position where it becomes necessary to use lethal force. By re-framing the debate in these terms, we are more likely to find a consensus among the police and those being policed.; law enforcement officers never want to find themselves having to make life-or-death situations, even if their actions are ultimately found to be justified. And these situations are obviously dangerous for police officers as well: over a hundred police officers are killed on duty each year. Politically, reaching a consensus with the police and their supporters is necessary: even at the height of the protests in the summer of 2020–the political zenith for those who seek to challenge the way we police crime in this country–a majority of the public still supported the police and rejected calls to abolish or even cut funding to police departments. Thus, arguing that the police are racist and calling for police forces to be disbanded is not a way to build the coalitions which are required to achieve the necessary reforms.

Luckily, there are a number of common sense reforms that are supported by a majority of Americans that can make a real difference in reducing the instances of police lethal use of force. Banning no-knock search warrants, requiring body cameras for every police officer, banning chokeholds, enhancing community policing efforts, increasing funding for mental-health professionals to work with police departments, increased police training, and emphasizing de-escalation tactics in training are all policies that could go a long way to reducing the number of violent and potentially lethal encounters between civilians and police. Many of these reforms are found in the federal George Floyd Justice in Policing Act, which has passed the House. In later posts, I will break down some of these potential reforms and evaluate how effective they might be.